The ingredients of defamation are-
- making or Publishing any imputation concerning any person,
- such imputation must have been made with the intention to harm with knowledge or having reason to believe that it will harm the reputation of the person concerned
Therefore, the intention to cause harm is the most essential "sine qua non" of an offence of defamation under section 499 of Indian Penal Code. Also, such statement must be published i.e. accessible to the public then only it will be considered defamation. Punishment for defamation is imprisonment up to two years or fine as per Section 500 of the IPC. In past few years, defamation cases are mushrooming in India like anything.
Petitions and politicians
The political leaders are filing defamation cases against each other on frivolous grounds and then cross defamation cases are being filed. There are a number of cases filed against political leaders like Arvind Kejriwal, Rahul Gandhi, Smriti Irani. This has led to fuss in media and needs to relook into defamation laws of India.
Defamation originates from the concept of scandalum magnatum "the slander of great men" which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary aristocrats. Investigating them can invite devastating consequences, even death. Most of the time, they retaliate through defamation law. Since the criminal justice system is most compromised at its base, where the police and magistrates directly interact with people, the misuse of criminal defamation law hurts ordinary citizens.
This is different from politicians prosecuting each other since they rarely, if ever, suffer punishment. On the other hand, there are numerous cases which politicians have filed against private members of civil society to silence them. When presented with these concerns, the Supreme Court simply failed to seriously engage with them.
Defamation as a Civil & Criminal Offence
Defamation can be viewed as a civil offence as well as criminal offence and may be defined as the writing, publication and speaking of a false statement which causes injury to reputation and good name for private interest. The remedy for a civil defamation is covered under Law of Torts. In civil defamation, a victim can move high court or subordinate courts for seeking damages in the form of monetary compensation from accused.
Section 499 and 500 of the Indian Penal Code provides an opportunity to the victim to file a criminal case for defamation against the accused. Punishment for the guilty person for criminal defamation is simple imprisonment which may extend to two years or fine or both. Under the criminal law, it is bailable, non-cognizable and compoundable offence.
Criminal defamation is defined under IPC section 499 and 500,
Section 499 of the IPC defines – ‘Defamation- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputations concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, expect in the case hereinafter expected, to defame that person.’
Section 500 of the IPC defines - ‘Punishment for defamation- Whoever, defames another shall be punished with a simple imprisonment for a term which may extend up to two years , or with fine, or with both’.
Constitutional Validity of Section 499 & 500
To escape from the defamation cases, political leaders including Arvind Kejriwal, Rahul Gandhi and Subramaniam Swamy have filed case challenging the constitutional validity of defamation law in India. It has been alleged that it takes away the fundamental right of freedom of speech and expression guaranteed under Article 19(1) of Constitution of India . The question that arose is whether defamation comes under reasonable restrictions imposed by the state under Article 19(2) of Constitution? The reasonableness of this restriction needs to be analyzed by Court. In Raj Gopal case, civil defamation has been modified to be in consonance with Article 19.
In some countries, defamation laws are not criminal laws. Therefore, whether section 500 of IPC is constitutionally valid? Recently, the Supreme Court in Subramanian Swamy v. Union of India upheld constitutional validity of defamation laws and rules that they are not in conflict with the right of speech . Apex court also said that one is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack.
Analysis of Article 19: Freedom of speech & expression with respect to defamatory comments
The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. Freedom of speech provides an opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state.
Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. However, it is rightly noted in State of West Bengal Vs. Subodh Gopal Bose case that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.
In another case S. Rangarajan Vs Jagjivan Ram the Court provided the test of `proximate and direct nexus with the expression’, it was held that the Court has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to the public interest.
International bodies on Criminal Defamation
International bodies such United Nations or the OSCE have recognised the threats imposed by criminal defamation laws and has further stated that this will leave an adverse effect on the freedom of speech and expression and have recommended that such laws must be abolished. For example, the OSCE parliamentary assembly has called for the abolition of all laws that provide criminal penalties for defamation of public figures or which penalise defamation of state or state organ.
The UN, OSCE and OAS Special Mandates have stated that “Criminal defamation is not a justifiable restriction on the freedom of speech and expression; all criminal defamation laws should be abolished and replaced, wherever necessary, with appropriate civil defamation laws”.
Criminal defamation laws are problematic as they are regularly in conflict with the freedom of speech and expression. It can lead to serious punishments or imposition of harsh sanctions such as prison sentence, hefty fines etc. Even if criminal defamation is applied with restraint, it can still cast a long shadow on the person accused, this can cause a restraint in free speech, and for example, the threat of being in detention or being criminally prosecuted will always be there in the mind of any journalist or any other person if he/she comes forward to expose any scams or any form of corruption etc.
The threat of being harassed will always be there in the mind of such person. This is not to say that defamation should not be discouraged but it must be kept as a civil violation and with accordance of the necessity test, the means used to discourage it should be carefully targeted for the prevention of dampening of legitimate criticism.
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